Flawed justice: the wrongful conviction of Kerry Baxter Sr.

The Constitution guarantees every American the right to a fair trial and to face his or her accusers. This right has been denied to African Americans, who make up a larger and larger part of the prison population under America’s “New Jim Crow.”

In the case of Kerry Baxter Sr., the California Superior Court system here in Alameda County blatantly ignored his rights. Kerry is asking for assistance in getting his story out in the hopes that Attorney General Kamala Harris and the Justice Department will conduct an investigation into his wrongful conviction.

In 2001, Kerry Baxter Sr., a 31-year-old African American man, was living with his girlfriend and two sons in Berkeley, California. He was involved in an incident on March 30, 2001, which changed his life forever. That evening he was at the Martinique Bar in East Oakland when approached by Jahmani Jones, 21, and several other young men.

The information the DA and police investigators withheld from Baxter’s trial and pretrial were depositions stating that Baxter and Jones were not at the crime scene. Both were standing more than a block away on Maple Street when the shooting on MacArthur took place.

The Martinique Bar is located on the corner of MacArthur Blvd., which runs east and west, and Maple Street, which runs north and south, in East Oakland. Jones told his friends that he heard Baxter was saying that he (Jones) shot out the back window of Kerry’s SUV. That incident had taken place the previous November and the car window had been replaced.

After several minutes of arguing, Jones pulled out a gun and shot at Baxter, missing. Baxter pulled out a gun and shot Jones in the left foot and both men ran in opposite directions. Baxter ran south on Maple and east on Georgia, which runs east and west, and Jones ran north on Maple and then east on MacArthur Blvd. Baxter went in the opposite direction and headed down Georgia to his girlfriend’s sister’s house.

Anthony Blake, a 52-year-old African American man, was standing outside of the Martinique where, according to witnesses, he had gone to smoke a cigarette. According to witnesses, he was in the bar and went outside to smoke after Kerry and the young men left.

There are variations of what happened next, but according to witness statements, two men in an older model car came down Maple, made a left on Macarthur, and four shots were fired in the direction of the Martinique. After the shooting, the car sped east on MacArthur Blvd. towards 35th Avenue.

At the same time, witnesses stated that they then saw two Black men about 23 years old running east on MacArthur. Could the car have been after the two Black men and accidentally shot Anthony Blake? No witnesses saw Blake fall and it is not clear how long he was down before being discovered.

The witness statements seem to state that a man fitting Jones’ description ran east on MacArthur Blvd. after Blake was shot. The officers took a witness to Highland Hospital to identify Jones, and he did not identify him. Jones was the only one in the room and the witness said, “It could be him.”

After the shooting, Baxter ran to the home of his girlfriend’s sister on Georgia Street. That is where he was told that someone had been shot and was dead. Still afraid of Jones and the other young men, he left the neighborhood. As someone with a previous felony conviction, when he was 18, he knew he would be in trouble for carrying and firing a gun.

Baxter did not know that under California’s “Stand Your Ground Law” he had a right to defend himself when Jones attacked him. It is the rule in California, by court decree, but in Oakland, any Black or Hispanic with a gun is a threat.

For more than a century, the state’s judges have declared that a person who reasonably believes he or she faces serious injury or death from an assailant does not have to back off – inside or outside the home – and instead can use whatever force is needed to eliminate the danger.

The Constitution guarantees every American the right to a fair trial and to face his or her accusers. This right has been denied to African Americans, who make up a larger and larger part of the prison population under America’s “New Jim Crow.”

Detective Brian Madeira and Deputy District Attorney Colleen McMahon were aware of the “Stand Your Ground Law.” This may be why they made Jones a victim of Baxter, after giving him blanket immunity to testify against him. Once Jones became a victim, no prior “bad acts” would be introduced in court.

Jones was on a probation hold in Merced County when the district attorney and homicide detective Brian Madeira went to pick him up. They offered a blanket immunity deal to Jones and took responsibility for him from the Merced County Probation Department. From the beginning of the incident until his testimony, Jones’ account of events changed.

In the intervening period between the incident and when Jones was picked up, Baxter arranged a safe surrender. There was an “armed and dangerous” warrant for his arrest, which gave law enforcement a reason to kill him. His 12-year old son was taken out of school and questioned by Madeira. Lawana Wyatt, Kerry’s girlfriend, was held and shackled for over 12 hours at Oakland police headquarters. Although she was shackled, Madeira made sure to tell her she was NOT under arrest.

The police went into the apartment in Berkeley, ransacked it and cut the mattress on the beds of Baxter’s sons. Madeira told Kerry’s girlfriend’s coworkers that she slept with her boss to get her job. This was an attempt to get her to testify against Baxter at his trial.

After Baxter’s arrest, he turned down DA McMahon’s plea bargain offer of 40 years if he pled guilty to the murder of Blake. He was then charged with second degree murder, the attempted murder of Jahmani Jones and a felon in possession of a gun. He requested a court appointed attorney because he and Jones were represented by the same public defender.

One person stated that Jones had a gun and when pressed by an officer backed down. One of the witnesses, Weatherby, said that he was told by one of Jones’ friends, Stevie Day, that Jones had a gun. However, when pressed, Day denied he made that statement.

While under blanket immunity, Jones went on a crime spree, which included assault with a deadly weapon and robbery. Although he was arrested several times, he was quickly released and was not tried for those crimes.

Is it any wonder that crime is so high in Oakland, when the DA and police department are allowing their informants freedom to offend repeatedly? Madeira has numerous complaints against him by African Americans and Hispanics in Oakland. In one case, the city paid out $73,000 after he was charged with assault. There are other cases with lesser settlements and more pending, while some do not mention an amount. It appears he took the case over from Sgt. Derwin Longmire, an African American, who accused the department of discrimination.

The information the DA and police investigators withheld from Baxter’s trial and pretrial were depositions stating that Baxter and Jones were not at the crime scene.

Madeira and Deputy DA Colleen McMahon created a scenario in which Baxter’s one bullet ricocheted over a block away and hit the victim in the chest. However, the coroner’s report shows the bullet hitting the victim’s left clavicle and traveling in a downward trajectory. Several officers described finding shell casings on Maple near the Martinique Bar.

Judge Jeffrey Horner presided over Baxter’s case, which took place in October of 2003 at Alameda County Superior Court in Oakland. Judge Horner had worked in the District Attorney’s Office as a prosecutor for 21 years. His most famous case was the Oakland Riders, a case against several police officers that ended in a hung jury.

Judge Horner knew the victim, who had sat on a death penalty case he presided over. Richard Hove, a private attorney, was hired by the family after he approached Baxter in Santa Rita. The family paid Hove $15,000 to represent Kerry at trial without knowing that he was on track to be disbarred. Kerry also paid $800 to Hove, after receiving payment from the family.

Hove was the son of Judge Hove, who was a friend of Judge Horner. Hove failed to disclose that he was suspended from practicing while he represented Baxter. The California Bar Association refused to refund the money Baxter’s family paid out but disbarred Hove in 2008. He was disbarred for mismanagement of his clients’ funds and had charges going back to the 1990s.

The all-white jury found Baxter guilty under California’s Three Strikes law, and he was sentenced to 66 years. Most of the witness testimony was not presented in court, including the gunshot residue test given to Jones.

Although Baxter was on trial for second degree murder, during the trial he was accused of being a felon, drug dealer and gang member who set out to kill Jones. The only witness from that evening was Jones, who stated that he did not have an immunity deal – although he had been in jail the week before – and that he had never fired a gun in his life.

The jury stayed out four days weighing the evidence and were sent back by Judge Horner when they appeared deadlocked. They found Baxter guilty on all counts. He is now an inmate in a California state prison and has no possibility of parole for 33 years.

On Jan. 16, 2011, Baxter’s son, Kerry Jr., was shot and killed in East Oakland. The detective in charge of finding his killers is Lt. Brian Madeira. Although there were two eyewitnesses to Kerry Jr.’s murder, no arrests have been made. Kerry Jr.’s case has now gone cold!

The Oakland Citizens Police Review Board (OCPRB) and Oakland PD Internal Affairs Department investigated after complaints were filed against Madeira and his investigator, Sgt. Nolan. Although Sgt. Nolan was reprimanded for interfering in the investigation of Kerry Jr.’s murder, the OPD has refused to remove Madeira as the lead detective. Neither the OCPRB nor IAD turned over any records to the family on whose behalf the investigation was conducted.

However, things are looking up for Kerry now that the Supreme Court has voted to allow the extension of appeals for those who claim ineffective assistance of counsel. The new evidence we found in Kerry’s case will allow him to petition the 9th Circuit Court of Appeals. He also has the claim of ineffective counsel, which he can present to the federal courts.

US Supreme Court ruling on ineffective assistance of counsel

Jurist reported May 28: “The U.S. Supreme Courtruled 5-4 Tuesday in Trevino v. Thaler that last term’s decision in Martinez v. Ryan on ineffective assistance of counsel claims should apply in this case. In Martinez an Arizona procedural rule required a defendant convicted at trial to raise a claim of ineffective assistance of counsel during his first state collateral review proceeding or lose the claim. Luis Mariano Martinez did not comply with the state procedural rule, but he argued that the federal habeas court should permit his claim because he lacked effective counsel both during trial and during his first state collateral review proceeding. The court ruled 7-2 that lack of counsel on collateral review might excuse defendant’s state law procedural default. In this case Texas law appears to permit but not require that a defendant raise the ineffective assistance of counsel claim on direct appeal, but the Texas system makes it “virtually impossible” to do so. Writing for the majority, Justice Stephen Breyer held that Martinez applies, vacating the judgment of the U.S. Court of Appeals for the 5th Circuit and remanding for further proceedings.

“Chief Justice John Roberts filed a dissenting opinion joined by Justice Samuel Alito. Roberts argued that Martinez should be limited and should not extend to these circumstance. Justice Antonio Scalia also filed a dissenting opinion joined by Justice Clarence Thomas. Scalia dissented for the same reasons set forth in his dissent from Martinez.”

Anita Wills is the author of three books, “Notes and Documents of Free Persons of Color,” “Pieces of the Quilt: The Mosaic of an African American Family” and “Black Minqua, the Life and Times of Henry Green,” all available on Amazon.com, and an activist who works with Occupy4Prisoners, Peoples Community Medics and the Peoples Database Autonomia. She can be reached at ntawls@gmail.com.

3 COMMENTS

11/6/2013 8:03pm~~Help Action Alert >>>Mic Check:~~Via~~ Anita Wills~~I am asking everyone to call the Warden, at California State Los Angeles County in Lancaster CA, about my son, Kerry Baxter Senior, Prisoner # V-17238, who is an inmate there. The Warden is J. Soto, and his number is, (661) 729-2000, My son just called me and said the guards are harassing him. They told him he has to move out of his cell and if he does not they will put him in the hole. He does not want to move because he gets along with the older guy he shares a cell with. The only available cells are those with inmates who are mentally disturbed and violent. He told me if they put him in the hole he will lose his job and still have to change cells. I believe they are setting my son up to be killed. They want him to change cells Immediately! This is so frustrating!